Monday, December 16, 2013

Fed. Dist Court Judge Leon Rules Against NSA and in favor of Klayman wrt phone records/WSJ

From the WSJ:

WASHINGTON—A federal judge on Monday ruled against the National Security Agency's collection of phone records, saying the program "almost certainly does violate" the Constitution.
However, the ruling will have little immediate effect and faces a lengthy future of court proceedings.
U.S. District Judge Richard Leon, who was nominated to the Washington, D.C., bench by former President George W. Bush, issued a 68-page ruling in favor of Larry Klayman, a conservative activist and lawyer.
Mr. Klayman filed suit in June, claiming that the program violated his Fourth Amendment right against unreasonable search.
On a daily basis, the NSA collects records of nearly every call made in the U.S. and enters them into a database in order to search for possible contacts among terrorism suspects. The scope of the program was revealed when former NSA contractor Edward Snowden leaked documents describing the program this spring.
The ruling came on Mr. Klayman's request for an injunction barring the government from collecting any telephone records associated with Mr. Klayman and another plaintiff. In the ruling, Judge Leon ordered the government to destroy any such records it currently has.
However, "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,'' the judge suspended his own order while the government pursues an expected appeal.
In issuing his ruling, the judge disagreed with a central premise of the program's defenders—that a 1979 Supreme Court ruling allowing investigators to look at the phone records of a Maryland robbery suspect gave them the authority to collect phone records of nearly every American.
Judge Leon ruled that the technology of both phones and phone surveillance has changed so much in the intervening years that the Smith decision is of little value in assessing the NSA program.
"The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,'' the judge wrote, adding: "I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.''
A spokesman for the Justice Department said lawyers there were reviewing the decision and declined to comment further.
The ruling gives more ammunition to those in Congress who have argued for an overhaul of the laws authorizing government surveillance.
Senate Judiciary Committee Chairman Patrick Leahy (D., Vt.) welcomed the ruling, saying: "Americans deserve an open and transparent debate about the constitutionality, efficacy, and appropriateness of the government's dragnet collection programs.''
The phone surveillance program has been attacked by legal activists on both the right and the left. A similar case is pending in federal court in New York, after the American Civil Liberties Union filed a lawsuit in the wake of the Snowden revelations. The judge in that case has yet to make a decision.
Judge Leon's decision uses strong language, and even occasional exclamation points, to question the candor of the government lawyers who argued against Mr. Klayman and to knock down various arguments made on behalf of the phone surveillance program—particularly the legal basis of the 1979 decision.
"It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government,'' the judge wrote.
He added: "There is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!''

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